Win for men as court declares part of Succession Law unconstitutional
The High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, citing gender-based discrimination against widowers.
The High Court has declared Section 29(c) of the Law of Succession Act unconstitutional, citing gender-based discrimination against widowers.
Justice Lawrence Mugambi ruled that the provision—which requires a husband to prove he was dependent on his deceased wife in order to qualify as a beneficiary of her estate—violates the Constitution’s guarantees of equality and non-discrimination.
The case was filed by a man identified as the husband of the late Caroline Wawira Njagi. The two had been married under Kiembu Customary Law since 2002 and had two children. Despite their separation in 2022, the couple maintained cordial relations and jointly raised their children.
Following Wawira’s death in July 2023, the petitioner was excluded from burial arrangements by the deceased’s partner, prompting a legal battle that ultimately granted him burial rights through the Mavoko Law Courts.
However, the heart of the constitutional petition lay in the petitioner’s challenge to Section 29(c) of the Law of Succession Act, which he argued placed a discriminatory burden on widowers—one not faced by widows under the same law. His lawyers, led by Shadrach Wamboi, argued that the law violated Articles 27 and 45(3) of the Constitution, which guarantee equality before the law and equal rights in marriage.
The Attorney General, named as the respondent, opposed the petition, arguing that he had no mandate to enact or amend laws and that such matters should be handled by Parliament.
The AG also contended that the matter belonged in the Family Division of the High Court, as it dealt with succession issues. He further maintained that the petitioner failed to prove constitutional violations with the required precision, as established by legal precedent.
However, the court dismissed those arguments, holding that the petition was firmly rooted in constitutional interpretation and did not violate the doctrine of constitutional avoidance.
“This is not a dispute over distribution of the deceased’s estate, but a clear question on the constitutionality of the law,” the judge ruled.
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In a strongly worded judgment, the court found that requiring only men to prove dependency in order to inherit from their spouses was inherently discriminatory.
“Such differentiation based on gender undermines the constitutional principle of equality, particularly in a marital setting,” the court held.
Drawing on previous decisions such as Ripples International v. Attorney General and Rose Wangui Mambo v. Limuru Country Club, the court emphasized that laws enacted before the 2010 Constitution must be reinterpreted to align with modern constitutional values.
However, the judge declined to grant a mandatory injunction compelling the Attorney General to initiate legislative amendments, citing the principle of separation of powers.
“The authority to amend or repeal legislation rests solely with Parliament. Courts cannot compel legislative action in a particular direction,” the court clarified.
Instead, the court issued a declaratory order, declaring Section 29(c) unconstitutional, null, and void. No costs were awarded, with the judge noting that the petition served the broader public interest.
The ruling sets a critical precedent in aligning Kenya’s succession laws with constitutional standards on gender equality and may trigger broader reforms in inheritance law.
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